Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Enterprise bargaining can be a great way to tailor pay and conditions to your business. But there’s a crucial safeguard you need to meet before an enterprise agreement can be approved in Australia - the Better Off Overall Test (BOOT).
In plain terms, the BOOT ensures employees covered by a proposed enterprise agreement are better off overall than under the relevant modern award. It’s a global, practical assessment conducted by the Fair Work Commission (FWC), and it sits alongside the National Employment Standards (NES), which can’t be undercut.
In this guide, we’ll walk through what the BOOT is, how the test works in practice, the recent reforms you should know about, and a step-by-step approach to preparing an agreement that passes first time.
What Is the BOOT and When Does It Apply?
The BOOT is a legal test applied by the FWC when deciding whether to approve an enterprise agreement. The question is simple: are employees who would be covered by the agreement better off overall than under the relevant modern award?
“Better off overall” doesn’t mean every single clause must be superior. The FWC looks at the agreement as a whole. However, there are two key guardrails to keep in mind:
- The NES is a non‑negotiable safety net. An enterprise agreement cannot lawfully reduce NES minimums (for example, annual leave or personal leave entitlements, public holidays, maximum weekly hours, or parental leave).
- The benchmark for comparison is the relevant modern award for the work performed - not your current workplace practices or an earlier agreement.
In practice, the BOOT applies whenever you lodge a new enterprise agreement (or a variation) for approval. It covers all employees the agreement would apply to, including prospective employees whose roles and patterns of work are reasonably foreseeable.
How Does the BOOT Work in Practice?
The Global Assessment
The FWC undertakes a global or overall assessment rather than a clause‑by‑clause tally. Some terms may be less favourable than the award (for example, different loadings or rostering rules), but other terms may provide genuine, measurable advantages (like higher base rates, additional allowances, or more flexible rostering with employee consent). The overall balance must leave employees better off.
Importantly, monetary and non‑monetary benefits can be considered. That said, the advantages must be real and practical for the affected employees - not theoretical.
Reasonably Foreseeable Work Patterns
The FWC focuses on patterns of work that are reasonably foreseeable over the life of the agreement. This ensures the BOOT assessment is grounded in how work will actually be performed (for example, the mix of weekdays, weekends and evenings), rather than remote hypotheticals. If your workforce includes weekend or late-night work, expect close scrutiny of base rates, loadings and penalty rates against the applicable award.
Role of the Fair Work Commission
The FWC independently assesses the evidence you provide. You’ll typically need to submit worked examples, rosters, classifications, pay scales and any undertakings you are prepared to make. If the Commission identifies issues, it may seek undertakings or, in limited cases, amend terms to bring the agreement up to the BOOT standard.
Remember, the BOOT is in addition to the NES. Even if your agreement is better overall than the award, it still can’t dip below NES minimums at any point.
Recent Reforms: Secure Jobs, Better Pay And BOOT
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduced targeted changes to make BOOT assessments more practical and efficient, while maintaining employee protections. Key updates include:
- Practical focus on real work patterns: The FWC must focus on patterns of work that are reasonably foreseeable, helping avoid overly hypothetical assessments.
- Clarified BOOT methodology: The global approach is reinforced - it’s the agreement as a whole that matters, not each clause in isolation.
- FWC powers to resolve issues efficiently: Where appropriate, the FWC can accept undertakings or amend terms to ensure the agreement passes the BOOT without sending it back for a new employee vote.
- Reconsideration pathway: After approval, parties can seek reconsideration if new or unforeseen patterns of work emerge that may affect whether employees are still better off overall.
For employers, these changes mean being ready with clear evidence of how the agreement will operate day‑to‑day. For employees, the changes keep the focus on practical protection while streamlining approval.
Preparing An Enterprise Agreement That Passes The BOOT
A strong, well‑evidenced agreement will make the BOOT process smoother. Here’s a practical approach you can follow.
1) Map Your Coverage And Award Benchmarks
- Identify the roles and classifications the agreement will cover and the relevant modern award(s) for comparison.
- List all monetary entitlements (base rates, loadings, allowances, penalty rates, overtime, breaks) and key conditions (rostering, flexibility, consultation, dispute resolution) under the award.
- Confirm NES entitlements are preserved and not reduced or offset.
If you’re unsure about award coverage or classification, it can help to get targeted modern awards and award compliance advice early so your benchmarks are accurate.
2) Design Terms That Offer Genuine Improvements
- Consider higher base rates, additional allowances or improved rostering arrangements that employees can actually access.
- If you propose different arrangements for weekends, evenings or public holidays, check how these interact with award penalties and the likely mix of shifts in your business.
- Ensure any flexibility promotes genuine employee benefit (for example, opt‑in arrangements or employee‑friendly rostering rules).
3) Test Against Real Rosters And Scenarios
Model representative rosters and patterns of work for each classification. Compare what an employee would receive under your agreement with what they would receive under the relevant award, using those real scenarios. Capture:
- Hourly and weekly pay outcomes across typical rosters
- Impact of loadings, allowances and penalties
- Non‑monetary benefits that meaningfully improve conditions
Where your modelling shows tight margins against award outcomes, consider enhancing the relevant terms before you lodge the agreement.
4) Prepare Clear Documentation And Evidence
- Set out your classifications, pay tables and example rosters in a way that is easy to follow.
- Keep records of your analysis and the assumptions behind your reasonably foreseeable work patterns.
- Be ready to offer undertakings promptly if the FWC raises concerns.
It’s also a good time to ensure your core employment documentation aligns with the agreement, such as your Employment Contract templates and key workplace policies.
5) Engage And Inform Your Workforce
Good communication helps employees understand the overall package and how it improves their position. Provide a plain‑English summary showing typical outcomes against the award for common rosters and classifications.
While consultation doesn’t replace the BOOT, well‑informed employees can surface practical issues early - before the agreement is lodged.
6) Align With Related Fair Work Obligations
Your bargaining process and approval steps must comply with the Fair Work Act’s rules and timeframes. It’s sensible to pressure‑test any changes to conditions or rosters alongside your obligations around consultation, procedural fairness and termination to reduce downstream risk. If you’re navigating dismissals or disciplinary processes during the bargaining period, keep an eye on the criteria in section 387 of the Fair Work Act as part of good governance.
Common Pitfalls And Misconceptions
“Every Clause Must Be Better Than the Award”
Not quite. The BOOT is a global assessment. The FWC considers the agreement as a whole, including how terms interact in practice. However, if the agreement disadvantages a class of employees with no genuine offsetting benefits, it’s unlikely to pass.
“We Can Trade Away NES Minimums”
No. The NES sets a mandatory floor. An enterprise agreement cannot reduce NES minimum entitlements. Any trade‑offs must be at (or above) the NES and leave employees better off overall compared to the award.
“Hypothetical Rosters Will Do”
The FWC now focuses on reasonably foreseeable patterns of work. If your evidence doesn’t reflect how people actually work (for example, the proportion of weekend or evening shifts), the Commission may give it little weight.
“Higher Base Rates Automatically Pass the BOOT”
Higher base rates help, but they’re not a free pass. If your operations include regular overtime, weekends or public holidays, you still need to compare outcomes across those periods, including relevant penalties and loadings. It’s useful to refresh your understanding of penalty rates and how they apply under the award.
“We Can Fix Issues After Approval”
There is a pathway for reconsideration if new patterns of work emerge post‑approval, but relying on that isn’t a strategy. It’s far better to identify and resolve BOOT issues upfront so you don’t face uncertainty or later variations.
Practical Examples
Here are simplified, illustrative examples of how the BOOT can play out in real workplaces.
Example: Hospitality Employer With Weekend Trade. The agreement proposes higher base rates and a new weekend allowance. When modelled across typical rosters (including Saturdays and Sundays), employees earn more each week than under the award, and rostering rules preserve breaks and consultation processes. On the global assessment, the FWC finds employees are better off overall.
Example: Manufacturing Employer With Overtime. The agreement preserves award overtime triggers and introduces a classification allowance. Even though some shift loadings differ, overall weekly earnings on representative rosters are higher than under the award. Because the NES entitlements are untouched and the classification structures are clear, the agreement passes the BOOT.
In both scenarios, detailed modelling and transparent pay tables supported the BOOT case.
Keeping Your Agreement Compliant Over Time
Enterprise agreements are not “set and forget”. Keep an eye on shifts in your operations that might change how people actually work (for example, increased Sunday trade or more overnight work). If new patterns emerge, revisit your modelling to check the BOOT still stacks up.
Operational changes may also require updates to related documents, like your employment templates or rostering policies. If you change role structures or duties, it’s good practice to review your terms against the relevant award and your agreement - similar to the approach outlined in our guide to changing employment contracts.
Key Takeaways
- The BOOT ensures employees covered by an enterprise agreement are better off overall than under the relevant modern award, and the NES can’t be reduced or traded away.
- The FWC applies a global, practical assessment focused on reasonably foreseeable work patterns, not remote hypotheticals.
- Strong agreements are built on accurate award benchmarking, real roster modelling, clear pay tables and preserved NES entitlements.
- Recent reforms support practical BOOT decisions, allow undertakings or amendments where appropriate, and provide a reconsideration pathway if work patterns change.
- Keep core people documents aligned - your Employment Contract, key workplace policies and award coverage should work together to minimise risk.
- If you’re unsure about coverage, classifications or outcomes, targeted support on modern awards and award compliance can save time and reduce approval hurdles.
If you would like a consultation on the Better Off Overall Test and enterprise agreements, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
